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Le v. Exeter Finance Corp.

United States District Court, N.D. Texas, Dallas Division

March 31, 2019

BINH HOA LE, Plaintiff,
v.
EXETER FINANCE CORP. and ENZO PARENT, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay, United States District Judge.

         Before the court are Defendants' Motion for Summary Judgment (Doc. 27), filed December 16, 2016; Defendants' Motion to Exclude Certain Opinions of Plaintiff's Expert (Doc. 28), filed December 16, 2016; Plaintiff's Objection to Defendants' Summary Judgment Evidence and Motion to Strike (Doc. 31), filed January 6, 2017; Plaintiff's Motion for Continuance (Doc. 35), filed January 6, 2017; Defendants' Objections to Plaintiff's Summary Judgment Evidence (Doc. 39), filed January 20, 2017; Plaintiff's Motion for Clarification on Discovery Deadline, or in the Alternative, Motion for Extension of the Same (Doc. 57), filed March 13, 2017; Plaintiff's Motion to De-Designate “Highly Confidential” Documents in Defendants' Productions (Doc. 63), filed August 2, 2017; Plaintiff's Second Motion to Compel (Doc. 83), filed April 13, 2018; and Plaintiff's Motion to Set Trial Date and Enter Scheduling Order (Doc. 86), filed April 17, 2018.[1]

         After considering the motions, responses, replies, briefs, admissible summary judgment evidence, and applicable legal standard, the court denies Defendants' Motion for Summary Judgment (Doc. 27) with respect to Plaintiff's quantum meruit claim, grants the motion in all other respects, and dismisses with prejudice all claims asserted by Plaintiff in this action, except for his quantum meruit claim; grants Defendants' Motion to Exclude Certain Opinions of Plaintiff's Expert (Doc. 28); overrules as moot, except to the extent specifically addressed and ruled upon in this opinion, Plaintiff's Objection to Defendants' Summary Judgment Evidence and Motion to Strike (Doc. 31); denies Plaintiff's Motion for Continuance (Doc. 35); overrules as moot, except to the extent specifically addressed and ruled upon in this opinion, Defendants' Objections to Plaintiff's Summary Judgment Evidence (Doc. 39); grants in part and denies in part Plaintiff's Motion for Clarification on Discovery Deadline, or in the Alternative, Motion for Extension of the Same (Doc. 57); denies as moot Plaintiff's Motion to De-Designate “Highly Confidential” Documents in Defendants' Productions (Doc. 63); denies as moot Plaintiff's Second Motion to Compel (Doc. 83); and denies as moot Plaintiff's Motion to Set Trial Date and Enter Scheduling Order (Doc. 86).

         The court also strikes all amended or supplemental submissions (Docs. 64, 64-1, 68-1, 78, 82, 82-1, 32, 77) that were filed by Plaintiff without leave of court in violation of the court's scheduling order, this district's Local Civil Rules, or both. Additionally, the court strikes the parties' submissions, arguments, or evidence (Docs. 72, 72-1, 72-2, 75) that were filed or made in response to or in support of Plaintiff's supplemental submissions.

         I. Factual and Procedural Background

         Plaintiff Binh Hoa Le (“Plaintiff” or “Le”), the former Chief Human Resources Officer (“CHRO”) and Executive Vice President of Defendant Exeter Finance Corp. (“Exeter”), originally brought this action against his former employer Exeter and Exeter's parent company Enzo Parent, LLC (“Enzo”) (collectively, “Defendants”) on October 2, 2015, in the 191st Judicial District Court, Dallas County, Texas, after his employment was terminated on February 23, 2015. Le asserts claims for breaches of a July 25, 2013 agreement and a May 2014 Management Profits Interest Unit Agreement (“PIU Agreement”). In his First Amended Petition, dated October 16, 2015, Plaintiff asserts claims against Defendants for (1) breach of contract; (2) fraud, fraudulent inducement, and fraud by nondisclosure or omission; and (3) alleged violations of the Texas Commission on Human Rights Act (“TCHRA”), Tex. Lab. Code Ann. §§ 21.001, et seq. Plaintiff also seeks relief under the equitable theories of quantum meruit, unjust enrichment, and money had and received.

         On December 1, 2015, Defendants removed the action to federal court after Plaintiff filed his Second Amended Petition (“Complaint”), the live pleading, which includes his previously asserted claims and requests for relief under state law, in addition to new federal employment law claims for retaliation under Title VII of the Civil Rights Act of 1964, et seq. (“Title VII”), which are also brought pursuant to 42 U.S.C. § 1981; the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”); the Americans with Disabilities Act, 41 U.S.C. § 12111, et. seq. (“ADA”); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”); and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”). Plaintiff's employment law claims are based on his contention that he engaged in protected activity in opposing unlawful employment practices by Exeter involving other Exeter employees, and Exeter retaliated by firing him.

         Plaintiff seeks to recover actual damages in an amount determined to have been sustained by him; exemplary damages, attorney's fees, prejudgment and postjudgment interest, and costs. Plaintiff alleges entitlement to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code and Texas Labor Code § 21.2585, “as well as under 29 U.S.C. § 621, et seq., 42 U.S.C. § 12111, et seq., among others.” Pl.'s Compl. ¶ 62. Plaintiff's request for attorney's fees is made pursuant to section 38.00 of the Texas Civil Practice and Remedies Code; section 21.259 of the Texas Labor Code or TCHRA; section 2000e-5(k) of Title VII; section 216(b) of the ADEA; section 2617(a)(3) of the FMLA; “and 42 U.S.C. § 2000e, et seq., among others.” Pl.'s Compl. ¶ 63.

         In accordance with the deadline set by the court for filing dispositive motions, Defendants moved for summary judgment on all of Plaintiff's claims on December 16, 2016 (Doc. 27). Defendants also moved for summary judgment on Plaintiff's Category I damages for losses allegedly sustained by him as a result of his leaving Lennox to join Exeter. On the same date, Defendants moved to exclude the opinions of Plaintiff's damages expert Karl Weisheit (“Weisheit) regarding the two categories of damages identified in Weisheit's report (Doc. 28). Regarding Plaintiff's Category I or Lennox losses, Weisheit expresses the opinion, based on Plaintiff's fraudulent inducement allegations, that Exeter's conduct in inducing Le to leave Lennox, his former employer, to work for Exeter caused Le to forgo or lose wages and the value of his Lennox equity portfolio. Weisheit opines that Plaintiff is entitled to recover as damages these Category I losses, which he concludes total $5, 268, 182. Regarding Category II or Exeter losses, Weisheit expresses the opinion, based on Plaintiff's wrongful termination and breach of contract allegations, that Le suffered damages totaling $6, 199, 344 for unpaid severance, lost wages (past and future), the unpaid value of his Enzo profits interest units (“PIUs”), and Cobra health insurance payments. Weisheit states in his report that “[a]dditional facts and data are needed to be produced by Defendants in order to complete my analysis of Mr. Le's losses” but does not specify whether additional facts or data are needed with respect to Category I or II losses or both. Defs.' App. 28 (Doc. 28-2). He also states with respect to PIUs losses that “[a]dditional information is needed and has been requested of Exeter . . . to calculate the actual PIU Mr. Le should have received.” Defs.' App. 35.

         Defendants contend that Weisheit's opinion regarding Plaintiff's damages should be excluded and Weisheit should not be allowed to testify regarding damages because he relies on inaccurate facts and flawed methodology. Defendants assert that Weisheit's opinion regarding Plaintiff's Category I losses should be excluded, as the evidence establishes that Le could not have been fraudulently induced to leaving Lennox to join Exeter because he was fired for cause by Lennox in April 2013 before learning of the job opportunity at Exeter in June 2013. In this regard, Defendants contend that Plaintiff testified untruthfully while under oath in his deposition that he left Lennox because he was recruited by Exeter, and Weisheit's expert report, the contents of which were verified by Le, relies on Plaintiff's false allegations regarding his fraudulent inducement claim.

         On January 6, 2017, the deadline to respond to Defendants' motions for summary judgment and to exclude the expert opinion of Weisheit, Plaintiff filed: (1) his response to Defendants' summary judgment and expert motions, which included a request for continuance under Federal Rule of Civil Procedure Rule 56(d) (Docs. 33, 34); (2) objections and a motion to strike Defendants' summary judgment evidence (Doc. 31); (3) a motion under Rule 56(d) to extend his deadline to respond to Defendants' summary judgment and expert motions to April 17, 2017, to give him an opportunity to conduct additional discovery, obtain a ruling on a previously filed motion to compel, and supplement or amend his expert report before responding to Defendants' summary judgment and expert motions (Doc. 35); and (4) a First Amended and Supplemental Designation of Expert Witness Pursuant to Fed.R.Civ.P. 26, without leave of court long after expiration of his September 6, 2016 deadline to designate experts (Doc. 32).[2] Defendants opposed the requested continuance.

         Thereafter, on March 13, 2017, Plaintiff filed an opposed motion (Doc. 57), requesting that the court enter an order clarifying that the discovery deadline was unexpired as of March 2, 2018, when it stayed all unexpired scheduling order deadlines. Alternatively, Plaintiff requested an extension of the discovery deadline “until 21-days prior to trial, ” so that he could depose three witnesses before trial.

         On August 2, 2017, Plaintiff moved to change the “highly confidential attorney's eyes only” designation on documents produced by Defendants in response to the magistrate judge's ruling that granted in part Plaintiff's Motion to Compel. Plaintiff contended that the documents should have been designated as “confidential, ” and Defendants' use of the “highly confidential attorney's eyes only” designation violated the parties' agreed-upon protective order (Doc. 63). On April 16, 2018, approximately eight months after filing his original Motion to De-designate “Highly Confidential” Documents in Defendants' Productions, Plaintiff filed, without leave of court, a “First Supplemental Brief” (Doc. 85) in support of his Motion to De-designate.

         On August 18, 2017, approximately six months after briefing on Plaintiff's Motion for Continuance and seven months after Defendants' summary judgment motion was complete and without leave of court, Plaintiff filed a “Supplemental Submission in Further Support of [His] Motion for Continuance [Related to Docket Nos. 27, 28, 35, 37 & 46]”[3] (Doc. 64) that includes additional argument and attached evidence in support of Plaintiff's response to Defendants' summary judgment motion and motion to exclude expert testimony. On August 24, 2017, Plaintiff filed a “Second Supplemental Submission in Opposition to Defendants' Motion for Summary Judgment [Related to Docket Nos. 27, 33, & 41]” (Doc. 68) that includes additional argument and attached evidence in support of his response to Defendants' summary judgment motion. The August 18, 2017 “Supplemental Submission” was filed and appears as a motion on the docket sheet. Both of these supplemental submissions by Plaintiff resulted in a new round of briefing. See Docs. 72, 75.

         On December 15, 2017, without leave of court and more than one year after expiration of his September 6, 2016 deadline to designate experts, Plaintiff filed a Second Amended and Supplemental Designation of Expert Witnesses Pursuant to Fed.R.Civ.P. 26, which indicates that a copy of Weishert's Second Amended and Supplemental expert report was served on Defendants on the same date. Based on this amended and supplemental report, Plaintiff filed a Supplemental Submission in Opposition to Defendants' Motion to Exclude Plaintiff's Expert.

         On April 4, 2018, without leave of court and more than one year after permissible briefing on the summary judgment under this district's Local Civil Rules was complete, Plaintiff filed a twelve-page “Second Supplemental Submission to Defendants' Motion for Summary Judgment [Related to Docket Nos. 27, 33, 41, 68, and 69]” (Doc. 82) to which Plaintiff attaches 121 pages consisting of declarations by Plaintiff and Plaintiff's counsel and other evidence in support of Plaintiff's response to Defendants' summary judgment motion.

         On April 13, 2018, Plaintiff filed a Second Motion to Compel (Doc. 83) documents that Plaintiff contends should have been produced by Defendants after the court overruled their objections to the magistrate judge's discovery order several months earlier on September 27, 2017. On April 23, 2018, the court entered an order directing the parties to not file any further motions or documents, except for those related to Plaintiff's Second Motion to Compel, as the constant filing of documents was delaying and interfering with the court's ability to manage the case and rule on pending motions:

The court is currently reviewing the pending motions filed in this case. The court, however, cannot rule on the pending motions if Plaintiff continues to file motions and materials related to the pending motions. Accordingly, the court directs the parties to not file any further motions, briefs, documents, or materials without first obtaining leave of court until the court rules on the pending motions. The only exception to this order is Plaintiff's Second Motion to Compel (Doc. 83), filed April 13, 2018. Any response to this motion by Defendants and related materials must be filed by April 30, 2018, and any reply by Plaintiff must be filed by May 4, 2018. Sanctions will be assessed against any party, attorney, or both who violate this order.

         Order (Doc. 88). At the time the court entered this order, it had recently become aware that Plaintiff had filed a number of supplemental and amended submissions without leave of court, but it did not know Plaintiff had filed two additional supplemental submissions (Docs. 82, 85) without leave of court two weeks before entry of this order. Because of the court's order staying the filing of all documents, except those pertaining to Plaintiff's Second Motion to Compel, Defendants were unable to respond to these new supplemental submissions by Plaintiff that were filed in support of his original summary judgment response and motion to dedesignate or redesignate documents. Defendants, however, were able to respond to Plaintiff's Second Motion to Compel, to which Plaintiff did not file a reply.

         Before reaching Plaintiff's discovery motions (Docs. 63, 83) and Defendants' summary judgment and expert motions, the court addresses Plaintiff's requests to continue the discovery deadline and his deadline to respond to Defendants' summary judgment and expert motions, and the effect, if any, of Plaintiff's numerous unauthorized supplemental and amended submissions that were filed without obtaining leave of court, as resolution of these matters affects the evidence and arguments that the court considers in ruling on Defendants' summary judgment and expert motions.

         II. Unauthorized Supplemental Submissions and Materials Filed by Plaintiff

         As noted, Plaintiff filed a number of “supplemental submissions” and briefs, without first seeking and obtaining leave of court, in support of his Motion for Continuance, responses to Defendants' summary judgment and expert motions, and Motion to De-designate “Highly Confidential” Documents. Le also amended and supplemented his expert designation and report two times after Defendants moved for summary judgment and long after expiration of the expert deadlines in the Scheduling Order without first seeking and obtaining the court's permission in an attempt to cure Plaintiff's deficiencies, as noted by Defendants' summary judgment and expert motions.[4]

         Plaintiff's Motion for Continuance (Doc. 35), which was filed January 6, 2017, became ripe on February 3, 2017, when Le filed his reply (Doc. 46) in support of the motion. Although Le's Motion for Continuance included a request to continue his summary judgment deadline under Rule 56(d), he filed a response to Defendants' summary judgment motion on the same date he filed his Motion for Continuance, and the summary judgment motion became ripe when Defendants filed their reply in support of the motion on January 20, 2017. After these motions became ripe, but before the court could rule on Plaintiff's requested continuance, Plaintiff filed three supplemental submissions, without leave of court, in support of his Motion for Continuance and response to Defendants' summary judgment motion. These supplemental submissions were filed on August 18, 2017, August 24, 2017, and April 4, 2018, between six and fourteen months after Plaintiff's and Defendants' motions became ripe. Plaintiff's August 18 and 24, 2017 “Supplemental Submission[s]” (Docs. 64, 68) resulted in an entirely new round of summary judgment briefing by the parties that was not complete until September 28, 2017, when Le filed a reply in support of his “Supplemental Submission[s], ” and approximately 800 additional pages of briefing and appendices. As noted, no additional briefing or evidence was filed by Defendants in response to Plaintiff's third supplemental submission that was filed on April 4, 2018 (Doc. 82), because the court directed the parties to not file any further materials, other than those related to Plaintiff's Second Motion to Compel, without first seeking and obtaining leave of court.

         As these “Supplemental Submission[s]” by Le contain additional argument and evidence in support of his Motion for Continuance and in opposition to Defendants' summary judgment motion, both of which became ripe long before the “Supplemental Submission[s]” were filed, the court construes them as unauthorized surreplies or supplemental filings. For similar reasons, the court construes the “First Supplemental Brief” (Doc. 85) filed by Plaintiff on April 16, 2018, in support of his previously filed Motion to De-designate “Highly Confidential” Documents in Defendants' Productions, as an improper surreply or supplement to his prior motion that was filed without leave of court, as it was filed approximately eight months after the original motion and approximately seven months after the original motion became ripe on September 6, 2017. The only stated reason for filing this surreply or amendment is that Defendants' alleged abuse of the parties' Protective Order has “gotten worse” since Plaintiff first complained about Defendants' document production designations.

         Surreplies are “appropriate only when the movant raises new legal theories or attempts to present new evidence at the reply stage.” Brackens v. Dallas Ind. Sch. Dist., No. 3:09-CV-06420-D, 2010 WL 5464823, at *5 (N.D. Tex. Sept. 20, 2010) . The scheduling order entered in this case on February 26, 2016, states as follows regarding motion practice and the filing of surreplies, and filings that have the effect of a surreply after briefing on a motion is complete:

Once a motion is filed, the Local Civil Rules permit a response by the nonmovant and a reply by the movant. See Local Civil Rule 7.1. Thus, the movant is entitled to file the last pleading. Surreplies, and any other filing that serves the purpose or has the effect of a surreply, are highly disfavored, as they usually are a strategic effort by the nonmovant to have the last word on a matter. The court has found that surreplies usually are not that helpful in resolving pending matters, and only permits pleadings beyond Local Civil Rule 7.1 in exceptional or extraordinary circumstances. Consequently, a party must not seek leave to file a surreply as a routine matter.

         Scheduling Order ¶ 4 (Doc. 118). Based on this same reasoning, the court has previously stricken surreplies filed without leave of court and denied requests for leave to file surreplies when the movant fails to show that exceptional circumstances exist. See, e.g., Lacher v. West, 147 F.Supp.2d 538, 539 (N.D. Tex. 2001). Local Civil Rule 56.1, which applies to summary judgment motions, provides that, “[e]xcept as expressly modified, the motion practice prescribed by LR 7.1-7.3 is not affected by LR 56.2-56.7.” Thus, Local Rule 7.1 applies to summary judgment practice. Local Civil Rule 56.7, which also applies to summary judgment motions, further provides that, “[e]xcept for the motions, responses, replies, briefs, and appendices required by these rules, a party may not, without the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence.” Local Rule 56.7 was meant to “address [ ] the former practice of filing supplemental materials, without leave of court, at any time while the motion was pending” because “[s]uch filings often prompted requests . . . to respond to the new materials, thereby delaying a decision based on a supplemental filing (and response) that may have had no bearing on the court's ruling, or that otherwise created uncertainty about whether the summary judgment motion was ripe for a decision.” Home Depot U.S.A., Inc. v. National Fire Ins. Co. of Hartford, No. 3:06-CV-0073-D, 2007 WL 1969752, at *2 (N.D. Tex. June 27, 2007).

         Regardless of whether Le's filings are viewed as surreplies or supplements, none was authorized, as leave was not sought and obtained by Le before they were filed. Moreover, Le has not demonstrated exceptional circumstances, and the court determines that exceptional circumstances do not exist to warrant granting leave to allow the filing of these materials, which have only served to unnecessarily complicate, confuse, and delay the proceedings in this case by creating a continually moving target and motions that never become ripe long enough for the court to rule on them.

         One example of the moving target created by Le's unauthorized supplemental submissions is his First and Second Amended Supplemental Expert Reports and designations and related materials filed in connection with Defendants' Motion to Exclude Certain Opinions of Plaintiff's Expert (“Motion to Exclude”) (Doc. 28). The court's Scheduling Order set a deadline of September 6, 2016, for Plaintiff's designation of experts and compliance with Rule 26(a)(2)'s requirement for disclosure of expert testimony and reports. Although his Motion to Compel (Doc. 13), filed August 24, 2016, was pending as of September 6, 2016, Plaintiff did not seek a continuance to designate his expert Weisheit or disclose his expert report before expiration of the September 6, 2016 expert deadline on the ground that Defendants had not produced information requested by Plaintiff that was needed by Weisheit to prepare his expert report and damages calculation. Plaintiff, instead, filed timely his Designation of Experts on September 6, 2016, in accordance with the court's Scheduling Order, and waited until after Defendants moved on December 16, 2016, [5] to exclude his expert's testimony regarding damages and pointed out various deficiencies in Weisheit's report before seeking a continuance to supplement or amend the report after conducting additional outstanding discovery.

         Before the court could rule on the requested continuance, which would require reviving the previously expired expert designation deadline in the Scheduling Order, Plaintiff filed a First Amended and Supplemental Designation of Expert Witnesses (Doc. 32) on January 6, 2017, and relied upon the First Amended and Supplemental Expert Report of Weisheit (Docs. 34, 34-1, 34-2) in responding to Defendants' Motion to Exclude, which was based on the original Weisheit report previously disclosed by Plaintiff. Plaintiff notes in response to the Motion to Exclude that the court had not ruled on his Motion to Compel. He fails, however, to explain why the new information or analysis in Weisheit's First Amended and Supplemental Expert Report could not, with the exercise of reasonable diligence, have been included in Weisheit's original expert report by the September 6, 2016 expert deadline or before Defendants filed their Motion to Exclude on December 16, 2016. Plaintiff, instead, simply notes in his response to the Motion to Exclude as follows regarding the First Amended and Supplemental Expert Report:

Simultaneously with the filing of this Response, Plaintiff is serving a First Amended and Supplemental Designation of Expert Witnesses along with a First Amended and Supplemental Expert Report of Karl D. Weisheit. See App. 32-59. Mr. Weisheit's Supplemental and Amended Report updates his calculation of Plaintiff's lost wages to reflect Plaintiff's actual compensation since the initial report was prepared in September.

         Pl.'s Resp. to Mot. to Exclude 3. Because Plaintiff's Motion to Compel was pending at this time, the new or revised lost wages calculation in Weisheit's January 6, 2017 report could not have been based on discovery that was the subject of the pending Motion to Compel as contended by Plaintiff, and Plaintiff never sought leave on any other basis to amend or supplement Weisheit's expert report. On January 20, 2017, Defendants filed a reply in support of their Motion to Exclude, contending that Plaintiff's attempt at salvaging his expert's damages opinion by supplementing or amending that opinion was unavailing.

         In an attempt to get the last word and cure the deficiencies noted regarding Weisheit's original and subsequent First Amended and Supplemental Expert Report, Plaintiff filed a Second Amended and Supplemental Expert Report on December 15, 2017, more than a year after expiration of the expert designation deadline without leave of court, indicating that Weisheit's Second Amended and Supplemental Expert Report was served on Defendants. In addition, Plaintiff filed an unauthorized Supplemental Submission in Opposition to Defendants' Motion to Exclude on the same date based on Weisheit's Second Amended and Supplemental Expert Report, asserting:

Defendants' Motion to Exclude is premised entirely on the argument that Mr. Weisheit had no reliable factual basis on which to value the PIUs. Now, he does. The Defendants have produced reports prepared by their own auditors that assign unit-level values to the PIUs, and Mr. Weisheit has used those reports to calculate[] accurate and reliable valuations for the PIUs awarded to Mr. Le. Those calculations show: (1) Mr. Le had a reasonable expectancy interest of $5, 013, 517.00; (2) Exeter was unjustly enriched by $383, 904.00 when it rescinded his unvested equity; and (3) Plaintiff's Supplemental Submission in Opposition to Defendants' Motion to Exclude [shows that] Exeter breached its contract with Mr. Le when it called his vested equity at $0.00, knowing it to be worth $38, 859.00. As such, the Defendants' Motion to Exclude is moot, and should be denied.

         Pl.'s Supp. Submission (Doc. 78, 78-1). Le's supplemental expert filings, however, fail to address or cure the deficiencies originally noted by Defendants in their Motion to Exclude, and, as herein explained, Le's repeated contentions regarding alleged discovery abuse by Defendants do not entitle him to an extension under Rule 56(d) or 16(b) to continue his summary judgment response deadline or his expert designation and report deadline.

         Plaintiff maintains, based on First and Tenth Circuit case authority, that there is no fixed time limit for seeking a continuance under Rule 56(d)(2) and supporting affidavits or declarations, as long as the continuance is sought within a “reasonable time” after receiving the summary judgment motion and not later than the deadline for responding to the summary judgment motion. Notwithstanding this acknowledgment, his observance of this district's Local Civil Rules and the court's Scheduling Order in other respects[6] suggests that he simply elected to abide by some Local Civil Rules and Scheduling Order requirements, but he disregarded others applicable to discovery, court-ordered deadlines, and the prohibition against filing surreplies and supplemental materials regarding pending and ripe motions. Instead of satisfying and explaining why he was entitled to a continuance under Rule 56(d) when he filed his Motion for Continuance on January 6, 2017, Plaintiff contended that discovery relevant to his claims was ongoing or incomplete and continued to file supplements in support of the requested continuance every time Defendants produced additional documents or Plaintiff deposed a new witness pursuant to the parties' discovery agreement to extend the discovery deadline to March 13, 2017, in an attempt to show that evidence obtained via ongoing discovery supported his requested continuance and rebutted Defendants' summary judgment and expert motions.

         The parties' discovery agreement, however, and Plaintiff's request to continue discovery until 21 days before the original March 3, 2017 trial setting, if granted, would have allowed the parties to conduct discovery until approximately three months after the dispositive motion deadline and expert challenge deadlines, one week after the pretrial materials deadline, and only two to three weeks before the trial of this case was originally set in violation of the court's Scheduling Order, which “requires that discovery be completed at least four months before the trial setting.” Scheduling Order ¶ 6. The agreement also violates paragraph 6 of the Scheduling Order, which states that “[t]he parties may agree to extend this discovery deadline, provided (1) the extension does not affect the trial setting, dispositive motions deadline, or pretrial submission dates, and (2) written notice of the extension is given to the court.” The Notice of Extension of Discovery Cutoff (Doc. 21), which the parties filed on November 1, 2016, less than one month before the dispositive motion deadline, provides notice of the parties' agreement to continue discovery to March 13, 2017, “[i]n accordance with paragraph 6 of the Scheduling Order (Doc. #9), ” yet Plaintiff's Motion for Continuance to extend his deadline to respond to Defendants' summary judgment and expert motions under Rule 56(d) is based in large part on the parties' agreement to continue discovery past the December 2, 2016 deadline in the Scheduling Order and schedule depositions in February, after briefing on any summary judgment motion would be complete, although the Scheduling Order expressly prohibits agreements to extend the discovery deadline without leave when doing so will affect the dispositive motion deadline, trial setting, and pretrial materials deadline.

         Rather than providing clarification, the numerous supplemental filings totaling approximately 820 pages have unnecessarily delayed the resolution of all the pending motions in this case and the trial, which the court had no choice but to vacate in light of the morass and confusion created by the filings. Because of the multiple unauthorized filings by Plaintiff, resolution of the Motion to Exclude, for example, will require the court to consider three different versions of Plaintiff's expert report totaling 80 pages and the parties' arguments regarding each damages report. Similarly, because Plaintiff filed numerous other supplemental filings without first obtaining leave, the court, instead of considering a motion and supporting evidence, a response and supporting evidence, and a reply as contemplated by this district's Local Civil Rules and the Scheduling Order in this case, was faced with the difficult task of first identifying all of the supplemental filings that pertain to Defendants' summary judgment motion, Defendants' Motion to Exclude, Plaintiff's Motion for Continuance, and Plaintiff's Motion to Dedesignate, and then reviewing the hundreds of additional pages of documents filed before ruling on the motions. The last of the supplemental submissions by Plaintiff was filed as late as April 4, 2018, [7] and April 16, 2018, together with a Second Motion to Compel by Plaintiff that was filed on April 13, 2018, only days before Plaintiff moved, on April 17, 2018, for the court to set a trial and pretrial deadlines. If the court had allowed the parties to file responses to and replies in support of these motions and supplemental submissions, the earliest date the trial could have been scheduled was September 21, 2018, as the court's Scheduling Order “requires that discovery be completed at least four months before the trial setting and that any dispositive motions be filed at least three and one-half months before the trial setting.” Scheduling Order ¶ 13. This assumes, however, that the court could have waded through all of the materials filed within this short period of time.

         For all of these reasons, as well as the reasons discussed in the next section regarding Plaintiff's Motion for Continuance, the court strikes all amended or supplemental submissions that were filed by Plaintiff without leave of court in violation of the court's Scheduling Order, this district's Local Civil Rules, and Federal Rules of Civil Procedure, as well as the parties' submissions, arguments, and evidence that were filed or made in response to or in support of Plaintiff's supplemental submissions (Docs. 32, 64, 64-1, 68, 68-1, 72, 72-1, 72-2, 75, 77, 78, 78-1, 82, 82-1, 85, 85-1).

         III. Plaintiff's Motion for Continuance (Doc. 35)

         On January 6, 2017, although Le filed responses to Defendants' summary judgment and expert motions on his required deadline, he also moved for a continuance to April 17, 2017, to extend his deadlines, pursuant to Federal Rule of Civil Procedure 56(d), to respond to Defendants' summary judgment and expert motions and incorporated his Motion for Continuance into his summary judgment response. Buried within the Motion for Continuance is also a request by Plaintiff to revive the expert designation deadline that expired four months earlier on September 6, 2016, to allow his expert Weisheit to supplement his expert report with a calculation of the value of his PIUs “based on the evidence wrongfully withheld to date, ” including “Duff & Phelps' calculations of the fair market value of the company and its PIUs” to cure the deficiencies noted in Defendants' Motion to Exclude. Pl.'s Mot. for Continuance 10.

         A. The Parties' Contentions

         Plaintiff contends that he needs an extension to conduct “necessary discovery” in the form of four oral depositions and “obtain . . . necessary rulings” on the Motion to Compel he filed on August 24, 2016, before he responds to Defendants' summary judgment and expert motions and before the court rules on Defendants' summary judgment and expert motions. Plaintiff asserts that the parties scheduled depositions for Anderson, Samantha Montalbano (“Montalbano”), Mark Floyd (“Floyd”), and Gena Evertson (“Everston”) between January 13 and February 9, 2017, to take place before the parties' agreed-upon discovery deadline of March 13, 2017. Plaintiff asserts that a continuance under Rule 56(d) is warranted because the “additional discovery” he seeks to conduct is “germane” to both of Defendants' motions, which seek dismissal of all of his claims and exclusion of his expert's opinions. Pl.'s Mot. 1, 5. Plaintiff asserts that “the lack of ruling on [his] Motion to Compel has come up in oral depositions” and has been used as a basis by defense counsel to instruct at least one witness, Walter Evans, to not respond to questions posed during a December 8, 2016 deposition.[8] Id. (quoting Dec. 8, 2016 Dep. of Walter Evans). For support, Plaintiff quotes from Walter Evans's (“Evans”) deposition testimony during which Evans was instructed to not respond to a question as to why the employment of the wife of Robert McWhorter, a former Exeter employee, was terminated. Exeter's counsel took the position that the reasoning for Exeter's decisions to terminate former employees was the subject of a pending discovery dispute. In response, Plaintiff's counsel argued:

The most relevant thing in this whole case, the furthest thing from irrelevant, is why people were let go and what [Plaintiff] had to say about it and if the reason [Plaintiff] was let go is because he objected to their unlawful termination. That's one of our claims. So you want to say it's irrelevant, that fine. We'll just go have a hearing on it, but we're just going to have to redo this depo.

Id.

         Regarding his employment law claims, Plaintiff contends that an extension of his summary judgment response deadline is necessary because Defendants have moved for summary judgment on all of his employment claims that involve Exeter's allegedly retaliatory termination of his employment but have refused to allow or respond to discovery regarding the reasons certain former employees were fired by Exeter. Plaintiff asserts that, although he alleges in his Complaint that he was fired because of matters he reported to Exeter, Defendants have declined to produce information regarding “[his] reports to [Exeter's] Board of Directors on FLSA issues” before Plaintiff's Motion to Compel is resolved. Pl.'s Mot. for Continuance 6.

         Plaintiff asserts that a continuance is also needed to respond to Defendants' summary judgment arguments regarding his fraud claim because his “fraud-related claims involve certain representations made to [him] by Exeter's previous CEO, Mark Floyd, prior to [his] employment, ” and the parties have agreed to a date for Plaintiff to depose Floyd, but the deposition is not scheduled under February 7, 2017. Plaintiff contends that “Floyd's testimony is relevant to at least Plaintiff's fraud claims, which Defendants seek to dismiss in their dispositive motion.” Id. at 6-7. Plaintiff maintains that “diligence and delay [are] not an issue” because this deposition will take place within the [parties'] agreed[-]upon discovery period (which ends March 13, 2017).” Id. at 7.

         Regarding his claim for breach of the PIU Agreement, Plaintiff asserts as follows:

Plaintiff alleges Enzo violated the terms of the PIU Agreement, specifically, section 4.3, which requires “Fair market value” of Plaintiff's profit interest units (“PIUs”) to be determined “on a going basis as if the Company and its Subsidiaries were sold as an entirety in an arm's length transaction.” See PIU Agreement, attached as D. App. 30 to Defendant's Motion for Summary Judgment Appendix. According to the Board's March 9, 2015 Resolution (the “Resolution”), the Enzo Board assigned $0.00 as the fair market value of Plaintiff's PIUs. A true and correct copy of the “Resolution” is attached hereto as Exhibit “B” and incorporated herein by reference. The Board arrived at this finding, despite testimony that an independent audit was performed by Duff & Phelps on Exeter, at least annually, to value those same PIUs and Exeter's General Counsel testified that he recalls some value being assigned to the PIUs. See Exhibit “A” at 66:16-68:25 [Dec. 8, 2016 Dep. of Walter Evans]. Brad Nall, a Senior VP of Finance at Exeter, also corroborated this independent annual audit by Duff & Phelps. See Exhibit “C” for relevant portions of Brad Nall's [Dec. 7, 2017] oral deposition, which are attached hereto and incorporated herein at 11:3-6, 29:12-32:6.

Pl.'s Mot. for Continuance 7. Plaintiff contends that additional time is needed to respond to Defendants' summary judgment motion regarding this contract claim because Defendants have not produced the Duff & Phelps audit reports of the PIUs, “[he] is asking for such documentation in connection with [his] Motion to Compel, ” and “[s]uch documentation is relevant to whether or not Defendant Enzo violated its contract with [him].” Id. According to Plaintiff, “[t]hese are just examples of the issues that need to be addressed through discovery prior to a ruling on the Motion for Summary Judgment, ” which he contends is “premature due to the additional discovery needed by [him] prior to the [parties' agreed-upon] Discovery Deadline.” Id. at 7-8.

         Defendants respond that Plaintiff is not entitled to a continuance of his summary judgment response deadline because he has failed to meet the standard for obtaining a continuance under Rule 56(d). Defendants contend that “Plaintiff's motion for continuance states, in a conclusory manner, [that] he has not obtained discovery on general matters from Defendants[, ]” but “[Plaintiff] has not specified how the evidence he seeks will create a genuine issue of material fact to defeat summary judgment. He also fails to identify specifically what relevant evidence his designated expert requires to complete his analysis under any methodology.” Defs.' Resp. 1. Defendants contend that, while Plaintiff's counsel submitted an affidavit in support of the motion for continuance, the affidavit fails to show how the discovery Plaintiff seeks will create a genuine dispute of material fact as to any summary judgment ground relied upon. Defendants contend that the unsworn arguments in Plaintiff's motion are similarly conclusory, and Plaintiff incorrectly focuses on the relevance of the discovery sought instead of explaining how specific discovery will create a genuine dispute of material fact as required under Rule 56(d). Defendants argue that, even if relevance was the test for obtaining a continuance under Rule 56(d), the reason for another person's employment being terminated is not an element of his employment claims that require him to show “he opposed an act that he ‘reasonably believed' was unlawful, not that it was actually unlawful.” Id. at 5 (quoting Heggemeier v. Caldwell Cty., 826 F.3d 861, 869 (5th Cir. 2016)). Defendants maintain that this information regarding Plaintiff's employment law opposition claims is uniquely within his knowledge and possession.

         Defendants assert that Plaintiff's fraud-related claims likewise involve information that is uniquely within his possession because, “[a]lthough Plaintiff refused to properly respond to interrogatories requesting the representations allegedly made to him (See Doc. 25-1), the representations would [have been] made to [him], so he is in possession of the evidence.” Defs.' Resp. to Mot. for Continuance 6. In addition, Defendants note that their summary judgment motion “does not argue whether representations were made, but, instead establish[es] [that the alleged representations] are not actionable fraud.” Id.

         Le notes in his reply that a hearing on his Motion to Compel (Doc. 13) was conducted on January 31, 2017, and the magistrate judge “ruled overwhelmingly in [his] favor, ” requiring Defendants to produce: “Plaintiff's work laptop, Plaintiff's work email, documents reflecting Exeter's internal valuation of the equity awarded to Plaintiff, documents reflecting the reasons for employee terminations that [he] has alleged were unlawful, and other critical evidence by no later than Friday, March 3, 2017.” Pl.'s Reply 1-2 (Doc. 46). In light of this ruling, Le “reiterates his request for an extension for time to respond to Defendants' motions.” Id. at 2. Plaintiff asserts that the requested extension is necessary because the court “cannot determine whether genuine issues of material fact preclude summary judgment when the evidentiary record in this case is about to change . . . drastically” as a result of the ruling on his Motion to Compel. Id. Plaintiff contends that the requested extension will also give the parties time to depose Floyd, Anderson, and Montalbano before the end of the parties's agreed-upon March 13, 2017 discovery deadline. Plaintiff notes that “Montalbano has yet to be served with the deposition subpoena as she continues to evade service of process, ” but that “Plaintiff hopes to serve [her] a reasonable time [before] the noticed deposition . . . to avoid multiple trips to Park City, Utah” where she and Anderson are both located. Id.

         Plaintiff disagrees that he has not identified with specificity the evidence needed to respond to Defendants' summary judgment and expert motions and notes that his Motion for Continuance references two interrogatories and eight requests for production that are the subject of his Motion to Compel as being necessary to respond to Defendants' motions. Plaintiff contends that he also specifically identified the independent audit performed by Duff & Phelps, which has been discussed in multiple depositions but has not been produced to date. Plaintiff asserts that his motion describes how Enzo violated the PIU Agreement by failing to value PIUs in accordance with that agreement, and how Enzo's $0 valuation of the PIUs contradicts the audits by Duff & Phelps that Defendants have been ordered to produce. Plaintiff further asserts that Defendants have been ordered to produce his computer and other documents that they contend have been uniquely in his possession or knowledge all along. Plaintiff contends that he did not take his work-issued computer or related communications with him when he left Exeter and, thus, Exeter “has always been ‘uniquely in possession' of those communications, ” not him. Id. at 5.

         Plaintiff contends that, as a result of the magistrate judge's ruling, he “will soon have those communications [by March 3, 2017], as well as evidence to support his opposition to certain protected activities in support of his wrongful termination claims.” Id. Plaintiff requests an extension to April 17, 2017, to respond to Defendants' motions, arguing that Defendants should not be rewarded for their discovery abuse by striking Plaintiff's expert and dismissing his claims. In addition, for the first time in his February 3, 2017 reply brief, Plaintiff requests a continuance of the April 3, 2017 trial setting, and presumably the March 6, 2017 pretrial materials deadlines, that were in place when Defendants filed their dispositive and expert motions.

         B. Discussion

         Plaintiff's request to continue the trial, which was raised for the first time in his reply brief, is moot in light of the court's decision on March 2, 2017, to vacate the trial setting and pretrial deadlines pending resolution of the numerous outstanding motions (Doc. 51). The court, therefore, focuses on Plaintiff's requests for a continuance to April 17, 2017, to: (1) respond to Defendants' summary judgment; (2) respond to Defendants' Motion to Exclude Weisheit's expert opinion regarding certain damages; and (3) supplement his expert report after Defendants produce documents that are the subject of his Motion to Compel.

         1. Rule 56(d) and 16(b) Legal Standards

         Although Le seeks a continuance under Rule 56(d) to extend his deadlines to respond to both of Defendants' motions, this rule applies only to his request to continue his summary judgment response deadline. Rule 56(d) provides that, when facts are unavailable to the summary judgment nonmovant and the “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Rule 56(d) is “usually invoked when a party claims that it has had insufficient time for discovery or that the relevant facts are in the exclusive control of the opposing party.” Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987).[9] The purpose of Rule 56(d), however, is not to permit the opponent of a summary judgment to complete discovery, as “Rule 56 does not require that discovery take place before granting summary judgment.” See McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991) (citation omitted). Thus, “[i]t not sufficient [for a summary judgment nonmovant] to allege that discovery is incomplete or that [discovery] will produce needed but unspecified facts.” Id. at 1088. Rule 56(d), instead, provides a mechanism for relief when the nonmovant has diligently pursued discovery but has not had a full opportunity to conduct discovery needed to raise a genuine dispute of material fact in response to a summary judgment motion. See Wichita Falls Office Assocs., 978 F.2d at 919. The party moving for a continuance under Rule 56(d) must, therefore, show why he needs the additional discovery and how the additional discovery will demonstrate that a genuine dispute of material fact exists to rebut the movant's grounds for summary judgment. Stults v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir. 1996) (citation omitted). In doing so, a party may not “rely on vague assertions that additional discovery will produce needed, but unspecified facts.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (citation and quotation marks omitted). The party requesting the extension must also show that relevant discovery has been diligently pursued, as it is not incumbent on the district court to “aid non-movants who have occasioned their own predicament on sloth.” Wichita Falls Office Assocs., 978 F.2d at 919.

         Le's request to continue his summary judgment response deadline until after the parties conduct additional discovery is also governed by Federal Rule of Civil Procedure 16(b), as this requested continuance will require modification of the court's Scheduling Order and revival of the December 2, 2016 discovery deadline. Likewise, Le's request to continue his deadline to respond to Defendants' Motion to Exclude is governed by Rule 16(b) because he seeks to conduct additional discovery and supplement his expert report after the deadlines in Scheduling Order for completion of discovery (December 2, 2016) and for Plaintiff to designate experts and provide expert reports (September 6, 2016) before responding to the Motion to Exclude.

         Before the court can modify a scheduling order, the movant must first show “good cause” for failure to meet the scheduling order deadline under Rule 16(b). S & W Enters., L.L.C. v. Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003). A scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). The good cause standard requires the “party seeking relief to show that the deadlines [could not] reasonably [have been] met despite the diligence of the party needing the extension.” S & W Enters., 315 F.3d at 535 (citation omitted). In deciding whether to allow an amendment to the scheduling order, a court considers: “(1) the explanation for the party's failure to meet the deadline; (2) the importance of the amendment to the scheduling order; (3) potential prejudice if the court allows the amendment; and (4) the availability of a continuance to remedy such prejudice.” Id. (internal quotation marks, brackets, and citations omitted). These same factors apply to the failure to make required expert disclosures under Rule 26(a) or the failure to make such disclosures timely.

         2. Motion to Continue Summary Judgment Response Deadline

         In support of his Motion for Continuance, Plaintiff submitted the affidavit of his attorney, Matthew S. Muckleroy, who states in pertinent part as follows:

2. I am attorney of record for Plaintiff Binh Hoa Le in the above referenced matter. The parties agreed to conduct discovery in this matter until March 13, 2017. See Docket No. 21. Plaintiff also has a pending Motion to Compel that was filed in this matter on August 24, 2016. See Docket No. 13. Plaintiff seeks a continuance of the Court's ruling on Defendants' Motion for Summary Judgment Motion [Docket No. 27] and Motion to Exclude Certain Opinions of Plaintiff's Expert [Docket No. 28] as well as an extension of time to respond to these motions. Opposing counsel relies upon the Court's (lack of) ruling on the Motion to Compel as a basis to prevent discovery of certain subjects germane to the dispositive motion and expert motions, as referenced in the Motion for Continuance. The request for an extension of time is not for purpose of delay, but simply to conduct additional discovery during the discovery period agreed[-]upon by the parties.
3. Both parties have also noticed several oral depositions during the next month. These oral deposition are also germane to the issues raised in Defendants' dispositive motion. For instance, Plaintiffs' fraud-related claims involve allegations regarding certain representations made to Plaintiff by Exeter's previous CEO, Mark Floyd, prior to Plaintiff's employment. Plaintiff and Defendants agreed to take Mr. Floyd's oral deposition on February 7, 2017. Mr. Floyd's testimony is relevant to at least Plaintiff's fraud claims, which Defendants seek to dismiss in their dispositive motions.
4. Plaintiff also seeks certain written documentation prior to responding to these motions, including, but not limited to the Duff & Phelps audit(s) referenced in Mr. Nall's oral deposition.
5. Plaintiff files this Motion, seeking a continuance of the Motion for Summary Judgment and the Motion to Exclude[] to a date after the [parties' agreed-upon] Discovery Deadline, so that Plaintiff can (hopefully) receive a ruling on the Motion to Compel and conduct the outstanding depositions prior to responding to the aforementioned motions.
Further Affiant Sayeth Not.

         Pl.'s Mot. for Continuance App. Ex. G (Doc. 35-1 at PageID 1240-41). Counsel's statement, that a continuance is needed until after “discovery of certain subjects” in Plaintiff's Motion to Compel is produced and “oral depositions” are taken because such discovery is “relevant” and “germane” to Defendants' summary judgment motion and Plaintiff's claims, is far too vague. Id. Counsel's affidavit neither identifies specific discovery nor states how the discovery sought will create a genuine dispute of material dispute in response to Defendants' request for summary judgment. As correctly noted by Defendants, relevancy is the standard under Rule 26 for conducting and compelling discovery, but relevancy alone is insufficient for purposes of obtaining a continuance under Rule 56(d), unless the discovery sought will also create a genuine dispute of material fact in response to the movant's summary judgment motion. The only discovery specifically identified in counsel's affidavit is the deposition of Floyd, Exeter's former CEO, but again, no explanation is provided as to why Floyd's deposition will provide facts necessary to create a genuine dispute of material fact. Counsel, instead, merely states that Floyd's deposition “is relevant to at least Plaintiff's fraud claims.” Id.

         Plaintiff's Motion for Continuance fares no better even if the court considers the assertions in the motion and reply. Plaintiff contends that depositions are scheduled for Anderson, Montalbano, and Everstson in January and February 2017, but he does not explain what information he expects to obtain through these depositions or how that information will create a genuine dispute of material fact in response to any of the grounds on which Defendants have moved for summary judgment. Plaintiff asserts that his fraud claim is based on representations that Floyd made to him prior to his employment regarding the value of the PIUs, and that his “testimony is relevant to at least Plaintiff's fraud claims, which Defendants seek to dismiss in their dispositive motion.” Pl.'s Mot. for Continuance 6-7; Pl.'s Reply 4. Plaintiff, however, fails to explain why he believes Floyd's testimony will create a genuine dispute of material fact regarding his fraud claim in response to Defendants' summary judgment motion.

         Moreover, Defendants moved for summary judgment on Plaintiff's fraud claim on the grounds that: (1) Floyd's representations regarding the projected value of the PIUs were opinions or proposals that do not constitute actionable fraud under Texas law, and Le did not rely on such statements; (2) Floyd's representations and the offer letter provided to Le regarding a severance payment are not actionable fraud, as terms of the offer letter clearly state that his eligibility for the severance payment was subject to certain terms and conditions; and (3) there is no evidence that Floyd or Exeter's statements were false or made to Le with the intent to deceive him. Plaintiff acknowledges that his fraud claim is based on alleged misrepresentations that were made to him. Thus, facts regarding these alleged misrepresentations are within Le's knowledge and possession and can be set forth in an affidavit by him. Likewise, whether Le relied on the representations and whether his reliance on the representations were justified or whether the representations are actionable under Texas law are matters that do not require discovery and are not an appropriate basis for seeking a continuance under Rule 56(d), which usually comes into play when a party contends that “relevant facts are in the exclusive control of the opposing party.” Union City Barge Line, Inc., 823 F.2d at 136. Moreover, if Plaintiff seeks to depose Floyd regarding the third ground raised by Defendants, this is not clear from his Motion for Continuance.

         Regardless, Le has not shown that he exercised diligence for purposes of Rule 56(d) or Rule 16(b) in attempting to schedule any of the four depositions before the December 2, 2016 deadline in the Scheduling Order for completing discovery. As noted, while the Scheduling Order permits parties to agree to discovery extensions, it expressly states that any such extension must not affect the trial, dispositive motions deadline, or pretrial submissions date, and the “court will not entertain any discovery dispute that is a result of an agreed extension.” Scheduling Order ¶ 6. The parties were aware of this when they filed their Notice of Extension of Discovery Cut-off on November 1, 2016, setting forth their agreement to extend the discovery period to March 13, 2017, as their Notice states that their agreement was made “[i]n accordance with paragraph 6 of the Scheduling Order.” Notice (Doc. 21). Le's Motion for Continuance, however, seeks to extend his summary judgment response deadline and the trial in light of the parties' discovery agreement in direct contravention of the Scheduling Order's prohibition against such extensions. Le's opposed motion for clarification regarding the discovery deadline also asks the court to resolve a discovery dispute between the parties that has arisen because of their discovery agreement, even though the Scheduling Order states that the court will not entertain such disputes.

         With respect to his request to continue his summary judgment response deadline until after resolution of his Motion to Compel, the court determines that Plaintiff was diligent in filing his Motion to Compel before the December 9, 2016 deadline in the Scheduling Order for doing so. Plaintiff has also identified some discovery that he contends is necessary to respond to Defendants' summary judgment motion; however, he has not demonstrated how this discovery will raise a genuine dispute of material fact in response to the summary judgment grounds raised by Defendants. He, instead, asserts in conclusory fashion that the discovery sought in his Motion to Compel is “germane” or “relevant” to his claims that are the subject of Defendants' summary judgment motion.

         Plaintiff contends that he needs information regarding “[his] reports to [Exeter's] Board of Directors on FLSA issues” because Defendants have moved for summary judgment on all of his employment law claims, which are based on his allegation that he was fired because of matters he reported to Exeter. Pl.'s Mot. for Continuance 6. Le also contends that he needs access to his work computer and e-mails and other documents to establish the reasons for Exeter's decision to terminate the employment of other employees that he contends he opposed. The court disagrees.

         To file this action, Le had to have known the bases for his employment law claims, that is, his belief that he was fired for opposing unlawful employment practices by Exeter. With respect to each of Le's employment law retaliation claims, Defendants moved for summary judgment on the ground that Le cannot establish a prima facie case of retaliation because he cannot show that he engaged in protected activity and that a causal connection exists between the protected activity and discharge, the adverse employment action. To show that he engaged in protected activity, Le need not demonstrate that the conduct he opposed rose to the level of a violation of one of the employment law statutes at issue; rather, he must show he reasonably believed or perceived that Defendants' conduct violated the employment statutes at issue. See E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 242-44 (5th Cir. 2016) (discussing reasonable belief standard for Title VII retaliation cases). Le should not need discovery to come forward with evidence in an affidavit, declaration, or otherwise to show why he reasonably believed that Defendants' conduct violated Title VII, the FMLA, FLSA, ADA, or ADEA; nor should he need discovery to establish a causal connection, for example, based on the temporal proximity between his opposition and termination. Thus, whether Plaintiff's work computer or e-mails will substantiate his claims that Defendants' conduct in firing certain employees violated various employment statutes is of no moment. Further, the issue of whether, as argued by Defendants, the “manager rule” bars his employment law claims is a legal issue for the court to decide.

         Finally, as noted, Plaintiff contends that additional time is needed to respond to Defendants' summary judgment motion regarding this contract claim because Defendants have not produced the Duff & Phelps reports of the PIUs, and “[he] is asking for such documentation in connection with [his] Motion to Compel, ” and that “[s]uch documentation is relevant to whether or not Defendant Enzo violated its contract with [him].” Id. at 7. Whether Defendants should be required to produce the Duff & Phelps reports appears to have been raised by Plaintiff the first time during the January 31, 2017 hearing on his Motion to Compel based on information obtained during the December 7, 2017 deposition of Brad Nall (“Nall”), Exeter's Senior Vice President of Finance. See Pl.'s Mot. for Continuance 7; see also Jan. 31, 2017 Hearing Tr. 11, 14, 41-56, 89. Whether the Duff & Phelps reports were responsive to any of Plaintiff's discovery requests was hotly disputed during the hearing on Plaintiff's Motion to Compel. Plaintiff took the position that the Duff & Phelps reports were responsive to his Interrogatory No. 7 and Requests for Production Nos. 45, 47, and 48. Id. at 14, 42, 43, 54. The magistrate judge ultimately agreed that the Duff & Phelps reports were relevant and fell within Plaintiff's Requests for Production Nos. 45, 47, and 48 and ordered Defendants to produce them by March 3, 2017.

         Because the dispute over the Duff & Phelps reports first came to light during a December 7, 2016 deposition, after the December 2, 2016 discovery deadline, and was not brought to the court's attention until the January 31, 2017 hearing on Plaintiff's Motion to Compel, long after Le's response to Defendants' summary judgment motion was due on January 6, 2017, the court concludes that the discovery dispute regarding these reports falls outside of the discovery deadline in the Scheduling Order. Additionally, Plaintiff's request for a continuance based on this discovery would require the court to decide a dispute that arose as a result of the parties' discovery agreement. Thus, while Plaintiff may have exercised diligence in serving Defendants with written discovery requests and seeking to compel production of documents pertaining to his discovery requests, his request to continue his summary judgment response deadline based on a discovery dispute regarding the Duff & Phelps reports that arose after the court-ordered discovery deadline as a result of the parties' discovery agreement violates the court's prohibition against such continuances and court intervention in resolving such disputes.

         Moreover, Plaintiff's explanation that the Duff & Phelps reports will create a genuine dispute of material fact in response to Defendants' motion for summary judgment on his contract claim based on the PIUs valuation is inadequate. Plaintiff contends that the Duff & Phelps reports are proof that Enzo violated the PIU Agreement because Enzo's $0 valuation of the PIUs contradicts the value of PIUs in the Duff & Phelps reports. For support that the valuations differ, Plaintiff relies on pages 21 through 27 of Nall's December 7, 2016 deposition testimony. The two pages of Nall's deposition testimony attached to Plaintiff's Motion for Continuance, however, do not address the Duff & Phelps reports. They only include Nall's testimony regarding his job title. See Pl.'s Mot. for Continuance App., Ex. C. The appendices to Plaintiff's responses to Defendants' summary judgment and expert motions include pages 26 through 41 of Nall's deposition testimony. After reviewing this portion of Nall's testimony, it is unclear why Plaintiff believes that the Duff & Phelps reports would create a genuine dispute of material fact that Enzo violated the parties' PIU Agreement by valuing the Plaintiff's PIUs at $0.

         Plaintiff acknowledges that his contract claim is based on his contention that Enzo violated the terms of the PIU Agreement by failing to value his PIUs in accordance with the PIU Agreement. According to that express terms of that agreement, Le was issued Time-Based PIUs and IRR-Based PIUs. Pl.'s Summ. J. Resp. App. 56 (Doc. 33-2). Section 4.3 of the agreement states that, within ten days of a “Call Notice” or “Put Notice, ” Enzo shall provide management with “its good faith calculation of [the] fair market value of the [PIUs] to be purchased.” Id. at 61. Section 4.3 further provides that “[f]air market value shall be determined on a going concern basis as if [Enzo] and its Subsidiaries were sold as an entirety in an arm's length transaction with neither the buyer nor the seller under a compulsion to buy or sell, and distribution were made on such sale pursuant to the distribution provisions of the LLC Agreement.” Id. In a letter dated March 10, 2015, Anderson, as Enzo's President and Chief Executive Officer (“CEO”), provided notice that Enzo was exercising its Call Option under section 4.3 of the PIU Agreement dated May 27, 2014, and valued Le's earned PIUs at $0. Anderson indicated that Le had forfeited his unearned PIUs under section 4.5 of the agreement.

         Nall did not testify regarding the value under the PIU Agreement of Le's PIUs as of March 10, 2015. Nall testified in very general terms regarding the perceived value of his own PIUs and stated more than once that he did not believe his own PIUs had any value because the company was losing money, he anticipated business to be “tough” in the next few years, and any value for his PIUs would be determined after Blackstone “cashe[d] out.” Pl.'s Summ. J. App. 115. Nall stated that Duff & Phelps performed an annual valuation of the company's PIUs as part of the company's audited financial statements but did not say that the method for valuing the PIUs for audited financial statements purposes was the same as that used to value PIUs under the PIU Agreement. Evans, instead, testified the valuation done by Duff & Phelps was for “GAAP”[10] or “financial purposes” and clarified that this involved a different type of valuation than that used to calculate the March 10, 2015 fair market value of the PIUs called under section 4.3. Pl.'s Mot. for Continuance App., Ex. A. Evans also testified that he believed that the fair market value of the units called on that date would have been zero. Id. Moreover, Nall could not recall if a positive value was ever assigned to the PIUs by Duff & Phelps and said, if any value was assigned, “it was small.” Id. at 116. Nall never indicated when a positive, albeit small, value may have been assigned in the past to the PIUs by Duff & Phelps, and there was no discussion regarding Enzo's March 10, 2015 valuation. Thus, in sum, Plaintiff has not shown how a valuation of Enzo's PIUs on a date other than March 10, 2015 for GAAP or financial purposes by Duff & Phelps using a valuation method different from the fair market valuation in the PIU Agreement could create a genuine dispute of material fact that Enzo breached the parties' PIU Agreement in valuing Le's earned PIUs as of March 20, 2015. For all of these reasons, Le has not satisfied his burden under Rule 56(d) and Rule 16(b) and is not entitled to the requested continuance of his summary judgment response deadline or the discovery deadline. Further, even if the court were to grant Le a continuance and consider the supplemental evidence offered by him in the form of the three Duff & Phelps reports, the court would conclude that they are insufficient to create a genuine dispute of material fact for similar reasons, as these reports did not value Le's PIUs as of March 10, 2015; the reports indicate that Duff & Phelps's analyses were conducted “solely for financial reporting purposes, in connection with the granting of the Profit Interest Units for stock based compensation, on a minority, non-marketable basis”; the PIU valuation in these reports is based on “Fair Value, ” not “fair market value” or “FMV.” Additionally, the valuations in these reports are entirely hypothetical in nature in that they are based on a “Monte Carlo simulation” of “1, 000, 000 paths, which represents the possible future values of the equity of the Company.” See Pl.'s Supp. Summ. J. Resp. App. 8, 66 (Doc. 68-1).

         Accordingly, for all of these reasons, Plaintiff has failed to satisfy the requirements for a continuance of his summary judgment response deadline under Rule 56(d) and his motion for extension in this regard will be denied.

         3. Requests to Continue Deadline to Respond to Defendants' Motion to Exclude Expert Testimony and Extend Plaintiff's Expert Deadline

         Plaintiff seeks a continuance of his deadline to respond to Defendants' Motion to Exclude essentially for the same reasons he requested a continuance of his summary judgment response deadline under Rule 56(d). The only difference is that he contends that he should be granted a continuance, not only so he can get a ruling on his Motion to Compel and obtain production of the Duff & Phelps reports before responding to the Motion to Exclude, but also to supplement his expert's report with a calculation of the value of his PIUs based on evidence that he contends Defendants have wrongfully withheld. Even setting aside that the discovery dispute regarding the Duff & Phelps reports arose after the discovery deadline in the Scheduling Order, consideration of Rule 16(b)'s factors does not weigh in favor of granting Plaintiff a continuance to supplement his expert report to include a new damages calculation for PIUs.

         Le attempts to blame the shortcomings in his expert's PIU damages calculation on Defendants' failure to produce requested documents. This, however, does not explain his delay in seeking a continuance to supplement or amend his expert report. By July 2016, when Defendants responded and objected to Plaintiff's written discovery requests, Le was aware that Defendants would not be providing certain information or producing documents he believed was responsive to his discovery requests. Le filed his Motion to Compel on August 24, 2016, shortly before his expert disclosure deadline. This is not to say Le was not diligent in conducting and seeking to compel enforcement of these written discovery requests. Rather, because Le contends that he is entitled to a continuance of his expert deadline in light of his Motion to Compel documents and information not produced by Defendants, this shows that Le knew or should have known before his September 5, 2016 deadline to designate experts and provide expert reports under Rule 26 that he did not have all the information his expert needed to calculate the fair market value of his PIUs in accordance with the PIU Agreement. Le, nevertheless, waited approximately four months, until after expiration of the September 6, 2016 expert deadline in the scheduling order to seek a continuance, and, he did so only after Defendants filed their Motion to Exclude and pointed out the deficiencies in his expert's PIU damages calculation and methodology that Le sought a continuance to supplement or amend his expert's report.

         More telling, though, is the complete absence in his expert's report of any discussion regarding the appropriate method for calculating the fair market value of PIUs in accordance with the PIU Agreement. Weisheit's report indicates that he considered the PIU Agreement in preparing his report and calculating Le's damages and acknowledges that the PIUs are subject to vesting, performance, terms, and other conditions in the PIU Agreement. Without explanation, however, Weisheit ignored the method in the PIU Agreement for calculating the fair market value of Le's PIUs and, instead, used the projected values that Exeter provided Le when he was recruited to calculate the “prospective” value of Le's PIUs. See Pl.'s Resp. App. to Mot. to Exclude 14 (Doc. 34-1). Weisheit states in conclusory fashion in his original report that “[a]dditional information is needed and has been requested of Exeter in order to calculate the actual PIU Mr. Le should have received, ” and “[a]dditional facts and data are needed to be produced by the Defendants in order to complete my analysis of Mr. Le's losses, ” but he does not identify the type of data or information he would need to calculate the PIUs in accordance with the PIU Agreement or another method. Thus, while Le contends that Defendants are to blame for the shortfalls in his expert's PIU damages calculation, there is no indication from Weisheit's original expert report that Weisheit ever contemplated a need to calculate the value of Le's PIUs using any information other than the projected estimated value that Exeter provided to Le in 2013 during his recruitment.

         Likewise, in his First Amended and Supplemental Expert Report, dated January 6, 2017, Weisheit continues to calculate the prospective or “promised” value of Le's PIUs using the projected PIU value provided to Le in 2013 rather than the fair market value on March 10, 2015, as required by the PIU Agreement. Id. at 38, 42. Although Le had known about the Duff & Phelps reports for approximately one month when the First Amended and Supplemental Expert Report was prepared, Weisheit continues to conclude, without explanation or reference to the method in the PIU Agreement for calculating the fair market value of Le's PIUs, that the “Profit Interest Example” that Exeter provided to Le before he was hired is a “reasonable approximation of the actual PIU Mr. Le should have received.” Id. at 43. He also continues to state, albeit in vague terms and without explanation, that “[a]dditional facts and data are needed to be produced by the Defendants in order to complete my analysis of Mr. Le's losses, specifically as they relate to the Enzo Parent Equity Loss, ” and [a]dditional information is needed and has been requested of Exeter in order to calculate the actual PIU Mr. Le should have received.” Id. at 38, 42, 43.

         Finally, in a Second Amended and Supplemental Expert Report dated December 15, 2017, Weisheit again notes that Le's PIUs are subject to vesting, performance, terms, and other conditions in the PIU Agreement. Pl.'s Supp. Resp. App. to Motion to Exclude 4 (Doc. 78-1). Based on a April 28, 2015 Duff & Phelps report that included an “Estimation of the Fair Value of Certain [PIUs] of Enzo Parent, LLC as of December 31, 2014, ” Weisheit concludes for the first time, without explanation, that, although Enzo valued Le's PIUs at $0, the value of Le's PIUs when he was fired in February 2015 was between “$383, 904 (100% vested) and $38, 858 (20% vested).” Id. at 3, 7. Weisheit fails to distinguish between fair value and fair market value or explain why he believes it is appropriate to use a “Fair Value” estimate of Enzo's PIUs as of December 31, 2014, to calculate the fair market value of Le's PIUs as of the March 10, 2015 call date as required by section 4.3 of the PIU Agreement and states only in conclusory fashion that the “Estimation of the Fair Value” as of December 31, 2014 “can be relied on to reasonably approximate the value of Mr. Le's PIUs as of the date of his termination [on February 23, 2015].”[11] Id. at 9. Without explanation, Weisheit continues to maintain that the PIU “[e]xample” that Exeter provided to Le in 2013 is also a “reasonable approximation of the actual PIU Mr. Le should have received, ” and that Le is not only entitled to damages of $5, 013, 517 based on an estimated future PIU valuation example that Exeter provided to Le in 2013, but also damages totaling $383, 904 and $38, 859 for the actual value of Le's PIUs as of the date of his termination. See Id. at 8. As with his other reports, Weisheit includes the following vague statement: “Additional facts and data are needed to be produced by the Defendants in order to complete my analysis of Mr. Le's losses, specifically as they relate to the Profits Interest Units Loss.” Id.

         These and Weisheit's other vague and conclusory statements regarding the need for additional information or facts do not adequately explain Le's failure to meet the expert deadline in the Scheduling Order; nor has Le explained why it took approximately nine months after the deadline for Defendants to produce the Duff & Phelps reports for Weisheit to prepare his Second Amended and Supplemental Expert Report. Le, instead, relies on his same argument that a continuance is warranted to permit his expert's December 15, 2017 Second Amended and Supplemental report because the magistrate judge ruled “overwhelmingly” in his favor on his Motion to Compel and ordered Defendants to produce the reports by March 3, 2017. See Pl.'s Supp. Resp. to Mot. to Exclude 2 (Doc. 78). The lack of explanation or inadequate explanation provided by Le for failing to meet the expert deadlines in the Scheduling Order and delaying for a long period of time before seeking a continuance and doing so only after Defendants pointed out the flaws in their Motion to Exclude weigh against granting his request to continue his deadline to respond to Defendants' Motion to Exclude or continue the expert deadlines in the Scheduling Order to allow him to amend or supplement his original expert report.

         Although the value of his PIUs constitutes one of the components of his damages calculation, Le acknowledges that it is not the only component and maintains that, even if Weisheit's opinion regarding the PIU valuation is stricken, the remaining damages calculated by him survive because Defendants only moved to strike Weisheit's opinion regarding PIU damages and Category I or Lennox damages that he no longer seeks to recover. Because Le's damages model has never been limited to PIU damages, and his expert's new method of calculating the actual value of his PIUs using the Duff & Phelps report appears to simply provide an additional means of calculating the PIU value that, if accepted, would permit Le to recover approximately $400, 000 in addition to the approximate $5 million previously calculated by his expert using a projected, estimated PIU damages model, the court determines that the new testimony is not so critical to support amending the Scheduling Order at this late juncture.

         Moreover, the importance of the new proposed testimony by Plaintiff's expert does not outweigh and “cannot singularly override the enforcement of local rules and scheduling orders, ” and any claimed importance underscores the need for Le to have complied with the court's deadlines or to have moved for a continuance before expiration of the discovery and expert deadlines if he believed that the deadlines could not reasonably have been met despite diligence on his part. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (internal quotation marks omitted); S & W Enters., L.L.C. v. Southwest Bank of Alabama, 315 F.3d 533, 535 (5th Cir. 2003) (citation omitted); Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990). Additionally, for the reasons herein explained, even if the court were to consider Weisheit's most recent amended and supplemental report, the court agrees with Defendants that his expert opinion regarding Le's PIU damages is inadmissible under Rule 702. Thus, any claimed importance regarding his amended and supplemental report to Plaintiff's case does not support the requested continuance.

         Further, the court determines that Defendants not only would be prejudiced but have been materially prejudiced by Plaintiff's dilatory conduct in seeking a continuance and having to respond to the numerous unauthorized supplemental submissions that were filed in violation of this district's Local Civil Rules without first obtaining leave of court have unnecessarily, as this delayed the resolution of the pending motions and trial of this case and likely caused Defendants to incur additional expense. It would also be patently unfair to allow Plaintiff to supplement and amend his expert report this late in the case without: (1) allowing Defendants to amend their expert designations and provide an expert report to address the matters in Plaintiff's amended and supplemental expert reports; (2) giving Defendants an opportunity to depose Plaintiff's expert regarding his most recent opinion; and (3) permitting Defendants to respond to Plaintiff's December 15, 2017 supplemental submission or surreply (Doc. 78) to Defendants' Motion to Exclude and any other supplemental submissions by Plaintiff that address Weisheit's amended and supplemental reports. A further continuance of the proceedings in this case to cure any such prejudice would not be appropriate. The court had no choice but to continue the trial and the parties' pretrial deadlines in light of the morass created by Plaintiff's numerous unauthorized supplemental filings and requests for the court to decide discovery disputes stemming from the parties' discovery agreement in violation of the Scheduling Order. Ordering another continuance would only serve to reward Plaintiff for his dilatory conduct and failure to comply with court-ordered deadlines and this district's Local Civil Rules and result in additional delay and expense. Regardless, it is not incumbent on the court to award litigants for failing to develop their cases. See Reliance Ins. Co. v. Louisiana Land and Exploration Co., 110 F.3d 253, 258 (5th Cir. 1997) (“affirming denial of request to modify scheduling order to cure deficiencies in expert's report and noting that “[d]istrict judges have the power to control their dockets by refusing to give ineffective litigants a second chance to develop their case.”) (citing Turnage v. General Electric Co., 953 F.2d 206, 208-09 (5th Cir. 1992)).

         For all of these reasons, the court concludes that Plaintiff has not established good cause for failing to meet his September 6, 2016 expert deadline. The court will, therefore, deny Plaintiff's Motion for Continuance with respect to his request to allow his damages expert to supplement or amend his expert report after the September 6, 2016 expert deadline in the Scheduling Order, whether for purposes of amending or supplementing Weisheit's analysis regarding his PIU damages or his lost wages. For the same reason, the court will deny his request to extend his deadline to respond to Defendants' Motion to Exclude until after supplementing or amending his expert report.

         IV. Plaintiff's Motion for Clarification Regarding Discovery Deadline and Alternative Request to Continue Discovery Deadline (Doc. 57)

         Le's Motion for Clarification on Discovery Deadline, or in the Alternative, Motion for Extension of the Same was filed March 13, 2017. Le seeks clarification regarding the discovery deadline in light of the court's March 2, 2017 orders: (1) staying the deadlines set by the magistrate judge pending resolution of Defendants' objections to the order granting in part Plaintiff's Motion to Compel; and (2) staying all unexpired deadlines in the Scheduling Order and vacating the trial. Specifically, Le requests that the court enter an order “clarify[ing] that the [court's March 2, 2017] order stayed the unexpired discovery deadline” of March 13, 2017, agreed to by the parties. Pl.'s Mot. Clarification 3. Alternatively, Le requests an extension of the discovery deadline, pursuant to Federal Rule of Civil Procedure 6(b)(1), “until 21-days prior to the new trial setting.” Id. at 4. Plaintiff asserts that the requested continuance is reasonable in light of the parties' discovery agreement to continue discovery until March 13, 2017, twenty-one days before the April 2017 trial setting vacated by the court, and notes that his requested continuance will not require the court to continue the trial, as the court has already vacated the original April 2017 trial setting. Plaintiff contends that his alternative request for a continuance is timely as it was made “before expiration of the current [agreed-upon March 13, 2017 discovery] deadline and not as a result of any neglect or delay tactic, as [he] has diligently worked to obtain the relevant discovery.” Id. at 5. Plaintiff explains that he “seeks to continue with discovery during the pendency of the stay and until a reasonable time prior to trial” to depose: (1) Montalbano, Exeter's former Chief of Staff; (2) unidentified “Duff & Phelps auditors”; and (3) Enzo's Chairman of the Board, Martin Brand (“Brand”). Id. at 6. Plaintiff maintains that Defendants will not be prejudiced by the requested extension because all unexpired deadlines in the Scheduling Order are stayed, and Defendants should not be allowed to benefit from their own discovery abuse.

         The court will grant Plaintiff's request for clarification, but only to the extent that it clarifies that its March 2, 2017 orders stayed Defendants' deadline to comply with the deadline(s) set by the magistrate judge pending resolution of their objections to the order granting in part Plaintiff's Motion to Compel; stayed all unexpired deadlines in the Scheduling Order; and vacated the trial and pretrial conference. The Scheduling Order deadline for completion of discovery expired December 2, 2016, not March 13, 2017. Thus, the court's March 2, 2017 orders staying unexpired deadlines in the Scheduling Order did not stay the December 2, 2016 discovery deadline, which expired three months before the court's March 2, 2017 orders were entered.

         While the parties extended the December 2, 2016 deadline in the Scheduling Order for completion of discovery by agreement to March 13, 2017, this agreed deadline is not a deadline that was imposed by the court either in the original Scheduling Order or any amended order. Because the March 13, 2017 deadline came about pursuant to the parties' discovery agreement and is not a deadline imposed by the court, it is not a Scheduling Order deadline. That the Scheduling Order allows the parties to extend discovery by agreement under certain conditions does not make any discovery deadline that is extended by agreement of the parties a Scheduling Order deadline, which can only be ordered, enforced, and modified by the court upon leave of court pursuant to Federal Rules of Civil Procedure 15(a) and 16(b).

         Moreover, paragraph six of the Scheduling Order makes clear that the court will not entertain any disputes that arise as a result of an agreement by the parties to extend discovery past the deadline set by the court for completing discovery. Plaintiff, nevertheless, requests, over Defendants' opposition, that the court provide him with an additional open-ended extension of discovery until twenty-one days before any new trial setting in light of the parties' discovery agreement to extend discovery to March 13, 2017, twenty-one days before the prior trial setting. In other words, in violation of paragraph six of the Scheduling Order, Plaintiff is asking the court, based on the parties' agreement to extend discovery, to resolve a discovery dispute in his favor to allow him to conduct additional depositions past the parties' agreed March 13, 2017 discovery deadline.

         While paragraph six of the Scheduling Order allows parties to extend discovery by agreement, it prohibits discovery agreements that will delay dispositive motions, the filing of pretrial materials, or the trial setting. Extensions of discovery or modifications to the Scheduling Order that will delay the filing of dispositive motions, necessitate extension of a response or reply to a dispositive motion, or reduce the time in the Scheduling Order set aside for the court to rule on dispositive motions before the trial setting cannot be done by agreement. Rather, such extensions and modifications are governed by paragraph 13 of the Scheduling Order[12] and Federal Rules of Civil Procedure 15(a) and 16(b), and any request for an extension of this kind or modification of the Scheduling Order under paragraph 13 must be made by motion, not agreement.

         The parties' November 1, 2016 Notice to the court assured that their discovery agreement was made in accordance with paragraph 6 of the Scheduling Order, yet Plaintiff's requests to continue his summary judgment response deadline, his expert deadline, and the trial on two separate occasions to conduct further discovery in accordance with the parties' discovery agreement violate the prohibition in paragraph six of the Scheduling Order against such extensions and makes the court question whether, at the time of entering the agreement, Plaintiff even intended to comply with paragraph six of the Scheduling Order.

         Specifically, the deadlines for filing dispositive motions and motions challenging experts was December 16, 2016. The parties' agreement to extend discovery to March 13, 2017, was reached on November 1, 2016, approximately six weeks before the dispositive motion deadline. At this time, Plaintiff knew that the Motion to Compel he filed on August 26, 2016, had been ripe for only six weeks and had not been ruled on yet. Thus, Plaintiff knew or should have known by November 1, 2016, whether his need or desire to conduct discovery, whether prior to or after the December 2, 2016 court-ordered discovery deadline, would affect his ability to respond to a dispositive motion or motion to exclude his expert, and he should not have waited until the last possible minute on January 6, 2017, the date his responses to Defendants' summary judgment and expert motions were due, to file his requests for continuance using the court's emergency ECF e-mail. See Docket Sheet Entries 31-35.

         The court's decision to vacate the trial and pretrial deadlines on March 2, 2017, does not absolve Plaintiff from violating the court's Scheduling Order because it was his conduct in seeking last minute extensions and filing supplemental materials in violation of the Scheduling Order and this district's Local Civil Rules that delayed and prevented the court from ruling on Defendants' summary judgment and expert motions in the timeframe contemplated in the Scheduling Order before the trial setting and pretrial deadlines. It was for this same reason that the court ultimately entered its order on April 18, 2018, admonishing Plaintiff and directing the parties to not file any further motions, briefs, documents, or materials without first obtaining leave of court until the court ruled on the pending motions.

         Plaintiff's alternative request to continue discovery also fails for another reason. Federal Rule of Civil Procedure 16(b) governs the requested continuance, not Rule 6(b) as argued by Plaintiff. Rule 6(b) generally applies to extensions of filing deadlines, not requests for continuance filed after expiration of a Scheduling Order deadline that will necessitate a modification of the scheduling order deadline. Plaintiff's request to continue discovery falls under Rule 16(b) because it was filed approximately three and one-half months after the December 2, 2016 deadline in the Scheduling Order for completing discovery expired. That the motion was filed before expiration of the parties' agreed-upon March 13, 2017 discovery deadline is irrelevant and does not relieve Plaintiff from establishing good cause under Rule 16(b) to revive and continue the December 2, 2016 discovery deadline for purposes of taking additional depositions.

         Plaintiff acknowledges that he waited until January 4, 2017, before noticing the deposition of Montalbano for the first time to take place on January 16, 2017, more than one month after expiration of the December 2, 2016 discovery deadline in the Scheduling Order. Plaintiff asserts that he has made a number of attempts to subpoena Montalbano to appear for a deposition on this and subsequent dates without luck. Plaintiff, however, provides no explanation as to why he could not have deposed Montalbano before expiration of the December 2, 2016 discovery deadline and acknowledges that he did not attempt to depose her before this time. He has, therefore, failed to establish good cause by showing that the December 2, 2016 discovery deadline reasonably could not have been met despite the exercise of diligence, and he is not entitled to a continuance for purposes of deposing Montalbano. The court notes that Plaintiff also fails to explain why he needs to depose Montalbano. He, instead, simply asserts in conclusory fashion, as before, that this and the other depositions he seeks to take are “relevant.” Pl.'s Mot. Clarification 1.

         Plaintiff also asserts that, in light of Defendants' production of the Duff & Phelps reports on March 3, 2017, he “would like to take the oral depositions” of Brand and unnamed “Duff & Phelps auditors, now that [he] finally knows the identi[t]y of those individuals.” Id. at 6. Plaintiff contends that he seeks unspecified testimony related to the three Duff & Phelps reports because he has alleged a breach of contract claim against Enzo for breaching the PIU Agreement in undervaluing his earned PIUs. Plaintiff asserts that, in light of the Duff & Phelps report(s), he would also like also to depose Brand regarding Enzo's or the Board of Director's decision to assign a $0 fair market value to his earned PIUs. Plaintiff contends that, in correspondence between February 24, 2017, and March 6, 2017, he requested to depose Brand within the agreed-upon extended discovery period, but Defendants refused to cooperate in scheduling his deposition, in part, because he is “a high-level Blackstone employee who resides in NY.”[13] Id. at 6. In addition, Plaintiff maintains that, in light of Defendants' “recent document production [that included the Duff & Phelps reports], as well as additional documents that are expected in the future, [he] may need additional depositions.” Id.

         Plaintiff implies that Defendants are to blame for his failure to exercise diligence in seeking to depose Montalbano, Brand, and others, but Le does not explain why he could not have taken the depositions he now seeks to take or other depositions before the court-ordered discovery deadline and before his Motion to Compel was decided. As noted, it is entirely unclear from Plaintiff's current motion or Plaintiff's prior Motion for Continuance why he wants to depose Montalbano. There is also no indication that the timing of Montalbano's deposition is in any way tied to Plaintiff's Motion to Compel or Defendants' discovery responses and production of documents. It is true that, on January 31, 2017, Defendants were ordered to produce the Duff & Phelps reports by March 3, 2017. Plaintiff, however, first learned about the Duff & Phelps reports and obtained other information in deposing witnesses such as Nall and former Exeter CEO Evans approximately two months before Defendants were ordered to produce certain documents and information as a result of the Motion to Compel. According to the correspondence relied on by Plaintiff, he also deposed another former CEO of Exeter. This undermines any contention by Plaintiff that he could not depose the persons he now seeks to depose or other witnesses until after obtaining a ruling on his Motion to Compel and all documents by Defendants were produced.

         The court also disagrees that Defendants will not be prejudiced by the requested discovery extension in light of the court's stay of all unexpired deadlines in the Scheduling Order. For the reasons already explained in connection with Plaintiff January 6, 2017 Motion for Continuance, it was Plaintiff's conduct in filing numerous unauthorized supplemental filings and requests for continuance based on the parties' discovery agreement in violation of the Scheduling Order and Local Civil Rules that necessitated the court's vacating the trial setting and staying the unexpired deadlines in the Scheduling Order. Additionally, Plaintiff did not meet his burden under Rule 56(d) of establishing that he was entitled to a continuance based on discovery that was the subject of his Motion to Compel. Thus, Plaintiff, not Defendants, created the delays and predicament he now faces, and Plaintiff's contentions of discovery abuse by Defendants, no matter how often repeated, are simply insufficient to justify the various continuances sought by him to date, whether under Rules 56(d), 6(b), or 16(b).

         Finally, it is unclear why Plaintiff seeks to depose Brand or others regarding the three Duff & Phelps reports attached to his Motion for Clarification, as only one of these reports was relied on by his expert in calculating his breach of contract damages. Regardless, as previously discussed and herein explained in the next section dealing with Defendants' Motion to Exclude, Le's argument and Weisheit's expert opinion regarding Le's PIU damages based on the Duff & Phelps report(s) are fundamentally flawed, unsupported, and inadmissible. For all of these reasons, the court will deny Plaintiff's alternative request for an extension of the discovery deadline to depose Montalbano, Brand, unnamed Duff & Phelps auditors, or persons who have yet to be identified by Plaintiff as possibly possessing information relevant to his claims.

         V. Defendants' Motion to Exclude Certain Expert Testimony (Doc. 28)

         Defendants have moved to exclude certain opinions expressed by Plaintiff's expert Weisheit regarding the two categories of damages sought by Plaintiff. Specifically, Defendants request that the court: “exclude any opinion testimony regarding the alleged value of certain management [PIUs] and damages related to [Le] being terminated for cause from his former employer [Lennox]” on the grounds that these “opinions rely on undisclosed or faulty facts and methodology, are impermissible speculation, or are not relevant to the issues in this matter.” Defs.' Mot. to Exclude 1.

         A. Category I or Lennox Damages

         Plaintiff's Category I or Lennox losses pertain to the damages Le allegedly sustained as a result of Exeter fraudulently inducing him to resign his position at Lennox to join Exeter. Regarding these damages, Weisheit expresses the opinion, based on the fraudulent inducement allegations in Le's Complaint, that Exeter's conduct in inducing Le to leave his former employer Lennox to work for Exeter caused Le to forgo or lose wages and the value of his Lennox equity portfolio. Weisheit opines that Plaintiff is entitled to recover as damages these Category I losses, which he concludes total $5, 268, 182. Defendants contend that Weisheit's opinion regarding Plaintiff's Category I losses should be excluded, as it is based on the inaccurate assumption that Plaintiff was fraudulently induced by Exeter to leave Lennox to join Exeter. Defendants contend that this assumption is flawed because the evidence establishes that Le could not have been fraudulently induced to resign his position at Lennox to join Exeter, as his employment was terminated for cause by Lennon in April 2013 before he learned of the job opportunity at Exeter in June 2013. Based on the deposition testimony of David Moon, Plaintiff's former supervisor at Lennox, Defendants contend that Plaintiff testified untruthfully while under oath in his deposition that he left Lennox because he was recruited by Exeter. Defendants further assert that Weisheit's expert report and damages calculation, the contents of which were verified by Le, must be excluded as it relies on Plaintiff's false allegations that he was fraudulently induced to resign his position at Lennox to join Exeter.

         In response Plaintiff indicates, without explanation, that he is no longer seeking Category I or Lennox damages and that Weisheit's expert report has been amended to remove these damages:

Simultaneously with the filing of this Response, Plaintiff is serving a First Amended and Supplemental Designation of Expert Witnesses along with a First Amended and Supplemental Expert Report of Karl D. Weisheit. . . . Mr. Weisheit's Supplemental and Amended Report also removes what was referred to as “Category I” damages in his initial report (i.e., damages based on Mr. Le's compensation at his prior employer, Lennox International, Inc.), as Plaintiff no longer intends to present evidence of “Category I” damages at trial.

Pl.'s Resp. to Mot. to Exclude 3.

         Defendants contend that, while Plaintiff's response frames his election to abandon or no longer pursue these damages as “his decision, ” he ignores that he “lied in his pleadings and under oath regarding his entitlement to any Lennox compensation, ” and that “[h]is position until he was caught (and in his summary judgment brief, in part) was different.” Defs.' Reply to Mot. to Exclude 1. Defendants maintain that, before he was caught in a lie, Plaintiff took the following positions:

“Plaintiff executed the Employment Agreement and walked away from a multi-million dollar equity plan with his prior ...

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